Immigrants — Nonquota status — Unmarried alien children under 18 born in quota country — Accompanying parent born in nonquota country and entitled to nonquota status — Section 4 (c) of the Immigration Act of 1924.
Unmarried alien children under 18 years of age, who were born in a quota country, but are accompanying their mother who was born in a nonquota country and who is entitled to nonquota status, are likewise entitled to nonquota status under section 4 (c) of the Immigration Act of 1924.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Quota immigrants without quota immigration visas.
BEFORE THE BOARD
Discussion: The appellants are a sister and brother, 5 and 2 years of age, respectively, natives of China and citizens of France. Their mother is a native of Mexico and apparently also a citizen of that country, though she is married to a French national who was born in Russia and who is now interned in Shanghai, China. The appellants and their mother applied for admission for permanent residence at Laredo, Tex., on February 6, 1945, and each presented a section 4 (c) nonquota immigration visa in support of their respective applications. After a hearing before a Board of Special Inquiry the mother was ordered admitted as a section 4 (c) immigrant, but the two children were excluded as quota immigrants who were not in possession of quota immigration visas. Pending our consideration of their appeals, the children were paroled into the United States in the custody of their mother. The visas presented by the appellants were issued by the American Vice Consul at Mexico, D.F., Mexico, on November 28, 1944, under section 4 (c) of the Immigration Act of 1924 on the ground that they were children, under 21 years of age, accompanying their mother, a native-born Mexican citizen. The Vice Consul's action in issuing these visas was in accordance with note 144 to section XXII-1 of the Foreign Service Regulations of the United States which are contained in visa supplement A thereof. This note reads, in part:
Children born in a quota country under 21 years of age accompanying a parent born in a nonquota country would have nonquota status under section 12 (a)
of the act, but if such children are accompanying both parents and the father was born in a quota country, the children would take his quota nationality under the provisions of the section of the act cited.
Section 4 (c) of the Immigration Act of 1924 provides nonquota status for "an immigrant born in * * * the Republic of Mexico * * * and his wife, and his unmarried children under 18 years of age, if accompanying or following to join him." Section 12 (a) of this act provides in part that in determining nationality "the nationality of a child under 21 years of age not born in the United States, accompanied by its alien parent not born in the United States, shall be determined by the country of birth of such parents if such parent is entitled to an immigration visa."
The Central Office of the Immigration and Naturalization Service is apparently of the opinion that section 12 does not confer any nonquota status not comprehended within section 4 of the Immigration Act of 1924 and for that reason believes that the two children involved in these proceedings are quota immigrants. That section 12 does not confer such status is apparently also the view of the Department of State, for in the same note quoted from above, it is stated, "It should be noted in this connection that nonquota status under section 4 (c) cannot be disturbed by section 12 (a) of the act." Yet, notwithstanding this language, it went on to read in the apparently inconsistent manner set forth above.
Granting that section 12 may not be employed in the determination of an alien's nonquota status, and that the basis for the Consul's issuance of the visas to the appellants may have been erroneous, we nevertheless cannot agree with the ultimate conclusions of the Central Office of the Immigration and Naturalization Service and the Board of Special Inquiry. We believe that the appellants were nonquota immigrants within the scope of section 4 (c) of the Immigration Act of 1924. They were under 18 years of age, obviously unmarried, and were accompanying an immigrant parent who was entitled to and was in possession of a section 4 (c) nonquota visa. The fact that the masculine gender is employed in the pertinent portion of section 4 (c) does not mean that the accompanying nonquota immigrant must be the father for the children to be entitled to nonquota status. A female alien born in a nonquota country is a nonquota immigrant even if she is married to and accompanied by an alien born in a quota country. The word "immigrant," as employed throughout section 4 of the 1924 act, obviously includes both male and female aliens. The word "him" as used in section 4 in our judgment also includes the female wherever the context permits. For example, though "him" is used in section 4 (e), female alien students as well as male are entitled to this type of nonquota visa.
The House Committee Report on the Immigration Act of 1924 (Rept. No. 350, 68th Cong., 1st sess.), lends support to the assumption that section 12 was enacted solely for the purpose of determining and enforcing the numerical limitation imposed by the quota and applied only to immigrants coming from quota countries.
Our construction of section 4 (c) is in accord with the existing regulation on this subject contained in 8 C.F.R. 110.39 which regulation, of course, has the force and effect of law. Section 110.39, in substance, states that unmarried children under 18 years of age accompanying a parent born in a nonquota country are nonquota immigrants. And parent, it is clear to us, comprehends either a father or a mother.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellants are aliens, natives of China and citizens of France;
(2) That the appellants, accompanied by their mother, a native and citizen of Mexico, applied for admission for permanent residence;
(3) That the appellants are 5 and 2 years of age, respectively;
(4) That the appellants are in possession of section 4 (c) nonquota immigration visas;
(5) That the appellant's mother was admitted as a section 4 (c) nonquota immigrant.
Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 4 (c) of the Immigration Act of 1924, the appellants are nonquota immigrants for the reason that they are unmarried children, under 18 years of age, accompanying their mother who was born in a nonquota country;
(2) That under section 13 (a) (3) of the Immigration Act of 1924, the appellants are not inadmissible to the United States as quota immigrants not in possession of quota immigration visas.
Order: It is ordered that the appeals be sustained and the aliens admitted for permanent residence.